Horrific Cases Test Our Commitment To Mercy And Understanding

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

In 2011, Anders Breivik killed 77 people, many of them teenagers attending a Labor Party meeting. He said the murders were justified because his victims embraced multiculturalism, and were therefore traitors. During his trial, he smiled, interrupted witnesses, and clenched his right fist in a fascist salute. In prison, he complained about cold coffee, grumbled that jail food was “worse than waterboarding,” and wrote prison officials to say that his stab-resistant pen was making his hand cramp, describing it as “an almost indescribable manifestation of sadism.”

Breivik’s crime was about as heinous as one can imagine, and when he was sentenced to 21 years, the maximum in Norway, many Americans were aghast. “As an American, or maybe just as a moral human being, it’s hard not to feel appalled, even outraged, that Norwegian far-right monster Anders Breivik only received 21 years in prison,” wrote Max Fisher in The Atlantic. Breivik will be eligible for release in 2033, but will be released only if he is not considered a threat, which is unlikely. Until then, he will live in a three-cell suite of rooms with exercise equipment, a television, and a laptop (without internet).

But Norwegians, and even many of the victims’ parents, seemed satisfied with the verdict, “seeing it as fair punishment that would allow the country, perhaps, to move past its trauma,” the New York Times reported. “Bjorn Magnus Ihler, who survived the Utoya shootings, said that Norway’s treatment of Mr. Breivik was a sign of a fundamentally civilized nation. ‘If he is deemed not to be dangerous any more after 21 years, then he should be released,’ Mr. Ihler said. ‘That’s how it should work. That’s staying true to our principles, and the best evidence that he hasn’t changed our society.’”

Breivik’s crime was not the first, nor the last, to test progressives’ commitment to mercy and opposition to retributivism. On Saturday, a 21-year-old drove nine hours to El Paso, Texas, apparently in an attempt to kill as many Latinx people as possible. He walked into a Walmart and killed 22 people. Twenty minutes before the shooting, the attacker is believed to have posted a racist and anti-immigrant document on the notorious online message board 8chan, warning of a “Hispanic invasion.”

When the relatively empowered—a young white man with an assault rifle—harm the relatively disempowered—unsuspecting people doing their back-to-school shopping, for example—it is easy to hate them. Or, as Fisher did in The Atlantic, call them a “monster.” When Michigan judge Rosemarie Aquilina sentenced Larry Nassar, the doctor who molested young gymnasts, to 175 years in prison, she said, “I just signed your death warrant.” She also said that if the Constitution allowed for cruel and unusual punishment, “I would allow some or many people to do to him what he did to others.” This is an example of carceral feminism, a reliance on policing and prosecution to resolve gendered or sexual violence.

As Alex Press wrote for Vox, “directing the movement’s energy into the criminal justice system doesn’t build the power we need to stop sexual violence: It allies us with a system that’s incompatible with liberation.” She added, “While a carceral feminist like Judge Aquilina may not envision justice that doesn’t beget more violence, we can.” In The Appeal’s predecessor, In Justice Today,  Kelly Hayes and Mariame Kaba argue, “We must depart from the crowd that applauds the signing of ‘death warrants.’” Hayes and Kaba describe how a justice system that condones stripping the humanity of those subject to punishment, without acknowledging the conditions that lead people to act in ways that harm their communities, derives from—and will inevitably perpetuate—oppressive, unequal societal structures. Instead, the authors suggest that truly transformative justice requires a system that eschews fear, fosters accountability, and restores community bonds.

When it comes to racially motivated violence, too, advocates have urged authorities not to give in to base retributivism. Nearly three years ago, federal prosecutors began the trial of Dylann Roof, the white supremacist who murdered Black worshippers at the Mother Emanuel AME Church in Charleston, South Carolina. “The killings of ‘the Charleston Nine’ last year were as violent and seared with racial hatred as the 1955 lynching of Emmett Till in Mississippi and the 1963 bombing of an Alabama church that killed four little girls,” wrote Christina Swarns, who, at the time, was director of litigation at the NAACP Legal Defense and Educational Fund. “Although this crime was meant to challenge the black community’s right to exist, the NAACP Legal Defense and Educational Fund opposes the death penalty for Mr. Roof. Such a sentence would have the perverse effect of justifying the routine, racially discriminatory imposition of the death penalty on black people.”

And in the wake of this week’s tragedies, most commentators have looked beyond individual culpability and toward systemic factors. Referring to the shooter’s manifesto, Paul Reyes wrote for USA Today, “This brand of rhetoric should be familiar to all Americans, as we have heard a steady stream of such bigoted bile since the day that Donald Trump announced his run for the presidency. Trump has rarely missed an opportunity to denigrate or demonize Latinos and immigrants, and now El Pasoans have paid the deadly price. The truth is that there is a clear link between the racist in chief and the loss of lives at the Cielo Vista Walmart.” Others have examined the role that online message boards like 8chan have played in radicalizing and inspiring the young men who went on to murder civilians in Pittsburgh, Poway, California; Christchurch, New Zealand; and El Paso.

When lawmakers and news media focus their attention extolling the virtues of “nonviolent drug offenders” and shy away from showing compassion to those who are accused or convicted of more serious offenses, it enables the same callousness that has led to degrading and dehumanizing treatment in our legal system. It opens the door for Joe Biden to say, as he did in 1993: “It doesn’t matter whether or not they were deprived as a youth. It doesn’t matter whether or not they had no background that enabled them to become socialized into the fabric of society. It doesn’t matter whether or not they’re the victims of society. The end result is they’re about to knock my mother on the head with a lead pipe, shoot my sister, beat up my wife, take on my sons.”

Of course it matters, and yesterday a federal judge said as much. In a quieter development, a judge sentenced Cesar Sayoc, the so-called MAGA Bomber who mailed 16 explosive devices to prominent critics of President Trump, to 20 years in prison, even though U.S. federal sentencing guidelines recommended life in prison plus 10 years. “I am beyond so very sorry for what I did,” Sayoc said at his sentencing. “Now that I am a sober man, I know that I was a sick man. I should have listened to my mother.” Federal Judge Jed Rakoff was apparently influenced by evidence of Sayoc’s difficult childhood, including parental neglect and sexual abuse. Referring to that evidence, Rakoff asked, “Does any of this matter? Yes,” he continued, “within modest limits.” Most notable, perhaps, was not a statement the judge made, but a question he asked: “So who is the human being who perpetrated these horrific acts of domestic terrorism?”

It’s a question we should all be asking, especially when we don’t want to do so.